United States v. Tot
| Decision Date | 14 August 1939 |
| Citation | 28 F. Supp. 900 |
| Parties | UNITED STATES v. TOT. |
| Court | U.S. District Court — District of New Jersey |
John J. Quinn, U. S. Atty. (William A. Smith), of Red Bank, N. J., for the Government.
George R. Sommer, of Newark, N. J., for Defendant.
On June 30, 1938, Congress enacted the Federal Firearms Act, 15 U.S.C.A. §§ 901-909, which, became, by its terms, effective thirty days after its enactment. Among its provisions is the following: "(f) It shall be unlawful for any person who has been convicted of a crime of violence or is a fugitive from justice to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce, and the possession of a firearm or ammunition by any such person shall be presumptive evidence that such firearm or ammunition was shipped or transported or received, as the case may be, by such person in violation of this chapter." 15 U.S.C.A. § 902(f).
On the morning of September 22, 1938, a Special Agent of the Federal Bureau of Investigation served upon the defendant, at his apartment at 182 East Kinney Street, Newark, New Jersey, a warrant for his arrest, issued upon a complaint made on September 21, 1938, charging the defendant with stealing from Interstate Commerce. At the time of the arrest, the Agent inquired of the defendant whether he had a gun. Defendant admitted possession of a weapon, and told the Agent it was in the pocket of his coat, hanging near by. The Agent removed a revolver from the coat pocket. Other accompanying Agents contemporaneously searched the apartment. Subsequently, the defendant was taken from the premises and arraigned before a United States Commissioner. There is no dispute as to these facts.
The defendant was indicted on November 15, 1938, in the following language: "That on or about the 22nd day of September in the year 1938 at the City of Newark in the County of Essex and State and District of New Jersey and within the jurisdiction of this Court, one Frank Tot, otherwise Frank Tott, whose true and correct name, other than as herein stated, is to the Grand Jurors unknown, he, having been theretofore duly convicted on the 22nd day of June in the year 1935 in the Special Sessions Court of the County of Essex, in the State of New Jersey, before Honorable Edwin C. Caffrey, Judge of said Court, of a crime of violence, to wit, assault and battery with intent to beat, wound and ill-treat one James Johnson, did knowingly, unlawfully and feloniously conceal and store a certain firearm, to wit, a 32 calibre Colt Automatic pistol, which said pistol had been theretofore shipped in interstate commerce; contrary to the form of the statute in such case made and provided and against the peace and dignity of the United States."
A petition was filed by defendant, alleging that the "search and seizure was illegal, unreasonable, unjust, made without probable cause, without a search warrant, and not as an incident to a lawful arrest, in violation of the Fourth and Fifth Amendments to the Constitution of the United States of America".
He prayed that an order be made directing the Director of the Federal Bureau of Investigation and the United States Attorney for the District of New Jersey, and all other Federal Authorities, to return the property (the revolver is the only property shown to have been seized) taken by virtue of said search, to the defendant, and, generally, to have the information and evidence acquired by the search and seizure suppressed.
Upon the hearing on this petition, the defendant objected, first, that the seizure was unlawful, unreasonable, and in violation of the defendant's rights under the Fourth and Fifth Amendments to the Constitution, U.S.C.A., and secondly, that the Federal Firearms Act, in so far as it relates to the indictment against the defendant, is unconstitutional.
It is conceded that the arrest of the defendant was lawful in that the officers were armed with a warrant for the arrest of the defendant. However, the defendant complains that, contemporaneously with the arrest, the officers ransacked the living quarters of the defendant in an exploratory search, and cites Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374; United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877, 82 A.L.R. 775, and other decisions of the United States Supreme Court, holding such searches, even though incident to the service of an arrest warrant, to be a violation of Constitutional rights. The defendant fails to note that an important exception to searches and seizures, otherwise objectionable, is made in the matter of relieving a defendant, who is being arrested, of a weapon or other thing which may be used to effect an escape from custody.
In Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 5, 70 L.Ed. 145, 51 A.L.R. 409, the Court said: This rule can be no less the law when the arrest is by virtue of a warrant, although the defendant is not actually engaged in the commission of a crime, as the facts in the case at bar disclose.
Any other action by the officer in this case might well have left the defendant in position to reach for his coat, possess himself of his revolver and effect his escape, with violent results to the agents, himself, or all. In justice to him, let it be noted that he frankly admitted possession of the revolver, and even offered to get it for the agent. But, if the agents' actions in this case were regarded as anything but lawful, provocation to escape and the hazard to the safety of the arresting officer would not be minimized, and,...
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United States v. Tot, 197.
...in the forenoon for sentence. 1 Act of June 30, 1938, Ch. 850, 52 Stat. 1250-1252, 15 U.S.C.A. §§ 901-909. 2 #8857-b. 3 United States v. Tot, D.C.N.J., 28 F. Supp. 900. 4 15 U.S.C.A. § 5 United States v. Tot, D.C.N.J., 36 F. Supp. 273. 6 For examples of Indictments sustained through disrega......
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United States v. Tot, 197-c.
...the Federal Firearms Act did not violate the second amendment to the Constitution and denied the prayer of the petition. United States v. Tot, D.C., 28 F.Supp. 900. Thereafter, the United States obtained an indictment superseding the indictment which was before Judge Forman. This supersedin......